862
l"EDEHAL' Imr'OR'l'ER, vol.
5L
'ghls, from being tUfned:Ottt'o'fd&oItl, he be'to btly',alld she did buy, house, it, and gavEl the use and rent !pr9perW;rrom 1859 until he' died in 1886, on the improvements Iii 1866, w,110 was still living in this house of the besought a. neighbor of his, who was goitlg go to the defendant in Maille, tell her of his' extreme poverty, berto buy apiece of lnndand putbim on it as her tenan(so')hat he' could the,re earn a comfortable Hying for his family. This nE'igb,bor r.arried JDessage to the defendant, ,and in response she came Irom 1\1aine to Mi.tmeapolis, in 1866" for the purpose of buying a farm, and puttiqg her brother upon it as her tenant, 60 that he might there support, his family, and educate his, Immediately on her tohk pity on his poverty, and bought him a. pair of horses, a wagoll, and harness, for him to earn his living with during that winter. She then bQught the lllnd" in controversy, it to be conveyed to herself, paid,$4,OOOcashfor it, andgave a mortgage back for $2,200, Matr and his tamwhich she SUbsequently paid. In March, 1867, ily moved upon the filrm in controversy, and he continued to occupy it from that date until,he died. EoI' the horses, wagon, harness, Ilpd Qther purchases of personal, property the defendant made for this brother, and in the expenses of her trip to Minnesota to assist about $1,000 in the fall of 1866. Iothe spring and summer oQ8!37 she advanced 8645 to enable hinito" plow and seed this farm, and, pUY!lpachineryto operate it. In 1873, at his request, she intru,sted hiQl .. buy 10 acres of land adjoining herfarm, and to invest the balance In pine lanas for her. He took the money, but never"hoqght the 10 !:lcres, never invested any orit in pine lands, and ne,ver acco\lpted for or paid backuny of all these moneys so ad vanced and intruste!1 to h,m, which amount. to more than 83,000. About the year 1871, Mr.;rdllrrgrubbed and broke up about 30 acreS of new land on this farm, and;wlthin two years after he received the 81,500 from the defendant tq W,'vest for her,he built upon it a granary, machinery buildh\lnllery, houRe, shingled the house and barn, moved an old building acrQss the roadand attached it to the house, enlarged the cellar, and, built a ne\Vkitchen, SQ that the buildings were made more spacious, useful, and comfortable, at,an expense of about'$l,700i but nopermanerit improvements aplJear to have been made by him subsequent to 1875. Under theile, circurasMI1ces, it is insisted by the complainant thatin November, H$6, contracted orally to convey this farm to Marr f91' '6,200, whenever he was able to The witnesses tocomplainant, however, go no further than to testify that, with Marr time, Of the purchase of the farm the defendan( told him she the place for him to make a home for and his family, and that the farui should be his at any time he co'uld 'pay back whllt she had paid for it, and Mr.
wlte
him
in
MARl: V. SIp.\\",
863
Marr assented to this, and Bnid he would do the best he could. No witness testifies that he told .herhe thought' be could, or. said to her he would, buy and pay for farn]; and all agree that he was to possession and use of it, to ,support his family, for an indefinite time, whether he bought and paid for it or not. In view of this fact, and thl,' further fact that the defendant furnished the money to.buy the seed anll machinery required in 1867 to raise the first crop, and that at Mr. Marr's request she came to Minnesota for the express purpose of buying a farm to put him on as her tenant, so, that he might there support his family, then in great weare not satisfied that Mr. Marr, by hill act of taking possession of the farm in, the spring of 1867, eithllr intended w,or did agree to buy this farm, and pay the $6,200; and the enti.ree"idence strongly points to the conclusion that ,he never made any such contract. ' . Specific performance of oral agreements to convey land, where the ptlrchasers ,have entered under the contracts, and made permanent improvementsupon land, has long been enforced in equity, on the ground that a roaHure so to do would work a fraud, on the purchasers through thel08s of their improvements; but in at bar the son of tbisrule ceases, because the entire made by Mr. Marr were far less in cost and value than the money he received from the defendapt after he took possession of the farm, and which he never repaid. No equity, therefore, in favor of the complainant arises here on accoulltof these improvements. Complainant's witlle!1SeS seek to draw this conUaet,a,fter a lapse of 22 years, from detached fragments of desultory oonversatlons between defendant and Mr. Marr while she was visiting at his house 01) her errand of mercy in 1866,fI:om family w..1k at meal times, and from spbsequent admissions,of hers to strangers that she had given Mr. Marra chance to the farm by paying the original purchase price; but no witness testifies that Mr·.Marr ever agreed with her to and pay this price; and, even if the defendant had offered to sell to him for $6,200 in 1866, such an unaceE'pted ofter wouldsJlrely. be of no avail 20 years later, and after the death of Mr. Marr.. . . On the other hand, the answer of the defendantpnquaJifiedly denies this contract of sale that is sought to be culled from these fragmentary, desultory conversations·. It is clearly pro'\,'ed that the purpose for which Mr. Marrbesought tbe defendant to come to Minnesota in 1866, and tbepurpose for .whicb she did come, was buy a farm for him, to get a living on lQr bimself and his famUy as her tenant; that both parties at that time sent for one B. F. Cutter to come to Minneapolis, to aSllist them in the purchase of sucb a farm; ,that he was present at Mr. Marr's bouse with them, advised and directed the negotiations while the. purchase was, b:eing' made, and remained until. the negotiatipns closed; and he. that the agreement was that Mr. Marr should occupy the the taxesand.ins\u'ance, keep the improvements in repair, and have aU be could raise on the farm, and that there was no agreement to it to him. It is that Mr. Marr,in his sched-
8G4
FEDERAL REPORTER,
vol. 51.
uies bankruptcy in 1868, swore that he had no intereSt 'in'any real estaw'under any contract; that in all his letters appeal' in evidence he mentioned this land as the defendant's,fahuj and never as' his own; that in his lifetime he repeatedly asked 'the defendant to selNhefarm to him; and she repeatedly refusedj that to a cloud of witnesses he stated that the farm was hers, and to many that he was livinK' on it as defendant's tenant under the. arrangement set forth in the answer, and that he hatino interest in it. It is clearly proved that the farm 'rapidly increased'iri value, until in 1883 it was worth $40,000, andtQ.at never offered or attempted to pay the 86,200 for· it,or to his' contract to buyit,but on in despondency to his death; , Ii'isuseless to further review this testimony. ,Weare unable to believe that the defendilnt made any contract to sell this land to Marr for $6,2PO, or that he made any contract to purchase it. 'Specific performance of an oral contract to convey land ought not to be decreed 20 years after the alleged date of the contract, unless the proofofthe contract is full, clear,and satisfactory.' PU'I'ceU v. Miner, 4 Wall. p1S; Golson v .-Thompson, 2 Wheat.S36; Carr v. l)uvul, 14 Pet. 84; Lattzv: Mclaughlin, 14 Mirin. 72, (Gil. 55'j)- Pom. Spec. Pert'. § 136, and authorities there cited. . In this case the' proof of the contllilct is vague, uncertain; and fragmentary , while the' surrounding circumstances, the situation,relation, acts, and statements of ,the parties to 'it while both werelivillg, and for 119. years after itsal1eged date, makeits existence improbable; !tis incredible that a man of ordinary intelligence, with the right to $6,200 a farm that as early as' 1883 was worth $40,090 i3hould,rest for'years in silence and poverty without exercising his right, add' die without attempting to enforce it. 'The proof of the contract, is farfrom full, clear, or sntisfactory. Again, anoffei of sale of land, must be accepted in a. reasonable: time in order to bind the prormser, and one which stands for 20. years, and until after the death of. the party to whom it is made, without compliance with its teIms or any agreement to comply therewith on his part, is abandoned by the lapse of time, and its subsequent acceptance will not bind proposer. Leake, Eq. Cont. 41; Pom. Spec. Perf. § 65; MeynellV'. Su,ttee8,' 25 Law J. C. H. 257, 259; Min'Y/,e8IJta Linseed Oil Co. v.(JoUier White Uad'Go., 4 Dill. 431. ; 'Even if, as sOme of the witnesses testified; the defendant did tell Mr. Marr in 1866 that he could have the land by payiingher the $6,200 she paid' for it he was able., inasmuch as· he never did pay it, or agree to pay it,during the subsequent 19 years of his life, the' complainant 'could not; 'after 'liisdeath, 'accept the proposition, offer to perform it, abd thereby 'make a contract binding upon the defendant. . Further, performabce of a contract ,in equity always rests ;in the soulfld'discretiori court; and where, upon a review of all 'the circumstances' of the particular" case,' it is patebt' that it will producehaiUship and 'injustiCe to. either of the' partitffij they may be left to their remedies' fi.t1i1w·.. , In such a caseaoourt of equity is not bound to tender a decree 'Of specific' performance, even though the contraot, is es-
DE MARTIN ".PHELAN.
865
tablished. WiUm'd v; Tayloe, 8 Wall. 557, 567; Godwin v. (Jollim, 3 Del. Ch.189, 201, 205; Joyncsv. Stratham, 3 Atk. 388; Buxtonv. Lister, rd. 385; Radcliffev. Warrington, 12 Ves. 326, 332; Underwood v. Hitchcox, 1 Ves.Sr. 279; Sey'1ll.our v. De Lancey, 6 Johns. Ch. 222. For 27 years the sisterly affection and generous bounty of the defendant protected her unfortunate brother, his wife, who brings this suit, and their children, against poverty and misfortune. To her they were indebted for a house to live in, a farm, seed, horses, machinery, all things needful with which to secure from the fertile soil of Minnesota a comfortable living, education for their children, and a respectable station in society. To them for 27 years she gave all the income arising from the $2,400 she invested in 1859 at her brother's request, to save his family from being turned out of doors at St. Anthony, all of the income arising from the use of the investment of the $6,200 in the farm from the year 1866 to the present time, and the principal and interest of more than 83,000, which she advanced to her brother between 1866 and 1874. Neither misfortune, importunity, nor 'faithlessness seemed to cool. her affection or exhaust her bounty. By her bounty this brother and his family were assisted until his death, his children have grown up and married, and his widow and devisee now asks this court to compel this defendant to perform a contract alleged to have been made 25 years ago, which, by its terms, would compel her, upon receipt of $6,200,· which she put at risk in 1866 for her brother's comfort, to transfer to the complainant this farm, which has fortunately so increased in value that, if defendant may still hold it,. it will be a fitting reward of her generosity. Such a contract would in itself be hard and inequitable under the circumstances of this case. The decree the complainants seek would be unjust to the defendant, and, if such a contract was clearly established, this court would hasitate long before it would award such a to ingratitude. The bill is dismissed.
DE MARTIN fl. PHELAN. (Ofnocuit Oourt of Appeals. Ninth Circuit. .July 18, 1892.) LAOHES-WHAT CONSTITUTES.
In a bill to have a deed declared a mortgage and to be allowed to redeem, com· plainant alleged that she was the owner in fee of certain lands, subject to three mortgage llens, aggregating $185,000, two of which had been foreclosed; that prior to the decree of foreclosure defendant purchased all of said liens, ".as a means of securing title to sald property and for no other purpose;" that complainant was then in indigent circumstances, and defendant, well knowing the same, took advantage thereof, and by means of said mortgage indebtedness induced ber to .sell him her eqUity of redemption, and to make bim a deed of said lands for $19,000, wheress they were iu fact worth $4li,OOO. The bill showed that nearly 10 years had elapsed since the conveyance, but alleged that since the saie defendant had been absent from the state "for a period aggregating four years." Held that, whetb.er the conveyance be regarded as a deed or mortgage, complainant, in the absence pf excuse for the delay, must be deemed guilty of laches. 47 Fed. ReP. 7111, atDrmed.
v.51F.no.13-55
FEDERAL' RBPQIRT!ll:Il';'
;' AppOOli from:'tneCiro.dit Court o/dae'United 'States, f(if :the Northern' . :. .... In'. ,Bill ,praying that a deefl ,he declaredill,mortgage and that complaifilll\flbe, allowed to redeem the ,lands. The circuit court sustainedia·tlempi'llef"to ,the bill for want of equity, (47 Fed. Rep.:761,) and;' dimpbiinltnt,declining to amend, subsequently dismissed the same. COIilplsinQht )appeals.' Affirmed. George lJ,: CoUi1l8, for appellant. "U'mJ Ji'.HetTinv(H. L. Gear,rofcouDsel;)forappellee. MCKENNA and GILBERT,CircuitJudges,imd DEADY, mstrict, 1;::; ",d! "i. j '}
'/1.[ ;-, 'r
,McKENNN; 'Cireuit J:1Jldge.,. This .is· a suit in equity, to ,have a deed w:hich,was, executed' by plaintiff in favor of anti' ana shebendJudged entitled tore4eem. :The case is presented on [biW and·\(iEimurrer.1'The plaintiff is awomau, and alleges that on the 11881, she was the owner and seised in fee of certil,llJlahdsdwhichwel'eshbjetlt to three mortgRge lierul,'aggregating on;:tbe13th,of :August, 1881, by thl1t prior to the di'.cree defendant' purchased all of1lhtid i Uen6,"ns ai means of securing the title. to said· property and for.no othe't jH.1.rl'0lfes" thatoQ: sa,id:day plaintiff was in ,indig.ent- circum$tances' uhtil November' 4. 1881, which defenllatlt' kneiW'j,ltbrit,hetQok. advantage 6f her destitlltecondition, and by tooi!on' of sahHn!iebtedDes8 purchased by hilil' induced her to transfer lldid'lsQds:tobim fOlthesumof$l,9,OOO,onsnid 4thof,NO\'ernber, 1881, Ilhd'mttke; i exj3Cute,'snd:- deliver ito ,him a:deed ofcoll:veyance, "because {to quote,ta8,languageof the-bill] destitute condition said dejendanttOQk. advantage in securing said deedj" that at that time her interestin saidi property, to wit, . equity of re-, demption, was of the value of $45,000, and more, which defendant knew. The plaintiff also alleges that defendant has been absent from said state of California for aperio'd aggregati'ilg four years since the 4th of November, 1881. The defendant demurred to the bill on the grounds that plaintiff was not If(Jl t¥ praxe,d for or any relief; that it did not appear that the deed was intended as security for money loaned or that ,the defendant took unfair advantage of her necessities, or exercised undue influence over ,or 9f, her to. said deed,..orofiered to return theconSlderabon tlierefor; andtbat the bIll shows of the fitde of. Cl,Vl1, Q(.cah£orllla.,:Xhecoult belowsustamad the I I
"
, 1t lsnotiDecessary to declde whether the b111 sufficiently shows that exercised uild,!e. overheJ. her rightswere l she was very lax ill assE'rtmg i ,tile,' d,eed ll,transfer of the. propetty d6scnbed m It; 'that the "oratnx dill'make, execute. an4 dehver to
.' "
.
said defendant aJdeed of cOllveYimce." The ·lntentiotl, then,was There was no misunderstanding 01' Mnfusion about the kind of instrument sheexeeuted or intended to execute. It was Ii deed, not a But it was obtained, she says, from her helplessness and dt'stitution: These could not have continued for nearly 10 years,--the time whioh, has elapsed since the making of the deed to the commencement ·of the suit. Indeed, her destitution was relieved by the payment to her of $19,000, and whatever influence or fraud was practiced on her could not have continued very long, and she must have been able soon after the transactio,n to clearly review and estimat(l its character and value to her. It is not alleged that the circumstarices which invested the transaction continued afterwards. When unembarrassed by poverty, when free from plaintiff's influence or fraud, it was her right, if she desired, to rescind the transaction, or, putting it strongest for her, to claim the trjl.ns/loo;tion as a loan and, security. But the right ,should have belln, exercised and uotified to the defendant within a reasonable time. Oil 0<>. v. Marbury, 91 U. S. 592: We do not think that nine years ,and ten months is a reasonable time. If she was excused for four years on account of defendant's absence. from the state, she was not eXCDsed for five years and ten morJths olhis presence in the state. The commepcerllcnt of the"suit is the first intimation of her dissatisfaction, and the plaintiff does not allege that defendant was absent from· the state continUl>Usly for four years, but "jllr a period aggregating fOUf years since the 4th of November, 188L" In other words, the "period" was a broken, not a continuous, one, and she ,had therefore opportunities of comirlunicating with him. The plaintiff's counsel attempts to distinguish between a right to regard the instrument as a mortgllge and a right to rep:ard it as a deed and to rescind it, admitting in the latter case that section 343 of the Code of Ciyil Procedure controls, and that plaintiff, is guilty of laches. We cannot entertain the distinction. There is a difference. great in material and legal effects, between a oeed and. a mortgage, but the difference does not indulge plaintiff's delay. That consists in not exercising within a reasonable time a right the defendant's imposition or fraud gave her, which right did not grow out of or depend upon the character of the instrument she executed; and the defendant was as concerned to know, as entitled to know, from plaintiff, she having the election, whether the instrument was to be regarded as a mortgage, with its consequences, as to kn,ow whether it was to be rescinded absolutely, with consequences which would follow. The cases in which a person is held as a trustee ex malificio are clearly distinguishable from the one at bar. There is no suggestion in the statute of. limitations of the state. In fixing within what period a claim will become stale, tbe supreme court in Oil Co. v. Marbury, cited Bupra, says: "We are but little aided by the analogies of statutes of limitation." And .iJ:lBullivanv. Railroad 00.,94 U. S. 811, says: "Every case is governed chiefly by its 6wn Circilmstances. Sometimes the statute of limitations is applied; sometimes a longer periodtban that prescribed
868 by
vol 51.
required. In some a shorter time is sufficient, IOmetillilesthe rule is applied where there is no statutable bar. 1\ is for, the court to apply the inherent principles of its own system. ofjurjspl,udence, and ,to decide accordingly;" citing a number of !lases. :aesides,' the plaintiff's llj.Ches is wholly independent of the statute ofliInitations. J udgmentis affirmed.
,rqHNSHlLLITO "" r::'
cO. .. '
Surveyor of Customs.
'CQUn oJ
8£xth Circuit. N!l. Ii.
September 17, 11192.)
L
OP ASSISTA.1'rT SBORBTARI1II
, bill appeal to 'the secretary of the treasury, as required by Rev. St. § 2981, alleged
, " All ilI!po*,r, tp recove!"' duties paid, in order tc) avoid the bar resulting frC)1n bis failure to bring tbe actlOU within 90 days after the decision of
'OP THB TRRA,8t1tiT.
that SUD,h,' dl¥llsioJl was void, beoa,llse lI!ade, not by the se()retary, but bY the assistant 'aqtlng ili hisofl'lolat capacity as assistant. ' Held, 'that as the assistant secretai1eti' would such appeals, if that duty were $8s1gn,ed by the case of his absence or siQkn8Bs, (Rev. St. $ 161; 177, 1'(9, 288, 245,) it mU'at be 'presumed, in the absence of a' contrary show.' Dg, ttiat appeal·was lawfll11y decided. '
1
of In the omoe of 01 the, treasury 'as may be prescribed by the seQretary or by lllow." does not conline the powers of the assistants to the duties of a like nature withthos8 here I$numerated,. '", i161 and 177, more .. ...g..;...A.'PP'BAt' :nOM " . , " A d'8ei8ion'b)'"tI1e secreta.ry:of 1h&,treasury that he will not entertain an appeal: ,. ,the tqr. c\1stoms, bee,aU88 the prQtellt, was, DOt filed in 'tiIne, I. a i\olOtsion "Or). the a eal;," within the meaning of Rev,' St.' 1 293t, whIch , requiressuit'1lO be broUght.::W lohil1''lIO day. after such decnsIon. : ", . · " When an appeal from the. cQUeQtor, of custQms is lawfully pending before the : trellBul'j' departlnent,the s8Ci1etiary ·has authority to deternrlne the ,same at any ' .. ' ip:Iporter; nor is he required tonotity the latter ", , of thE! result .his deCISion. 45 Fed: Rep. 778, aftirmed. , t' "B.ul:m-:-AOTION: '1'0 REooVERD1JtttlIS-EllTOPPEL. ' " (,i A lluitagaill11t a ,QOllector:of culltomSjto reQOver duties paid, is praotlQally a suit against the UniWd States; and, as the governme\lt is not bound by an estoppel, - the fact thilt tbeboliectdr did-hot !lotitjr the importer of an adverse deQision by. the · ,secretary of the treasury upon the im'porter's appeal does I\ot prevent,tbecollector ;fromlletting,,up as a defen,88 that. the sujt was not brought within 90 days from 'that'decfsion, as required by Rev. at. 9'2931. 45 Fed. Rep. 778, aftirmed. I. 8ul:B-EsTOPPEIt-ABSIGNMENT OP CLAIM. ' , An paf80perates onl1 bl. favor of the persoD aotually misled, and an , 'assignee of' aolaim for dUties'PILld" ilannot rely upon an estoppelalleged to arise fromaQts of, the'CQl1eotor whiohmisled .the assignor. .' An ,of an unllqui4ated cla\lD for duties alleged to have been illegally , exacteaoonll.ot'maintBin a suit thereon against the oollector,forthe assignment " :ofsUQll<. pl$jm "9id undef Rev. at. 1 3477. , ' 'I,SA,ME, ,:; ,,' :. , ' ' " ",' ;'., ,,;;.., " J
"'ambia let1lertii !colltt'&ctil;ailc)'warrlill.ts preimred for tb:e41lgnature of the secretary
Rev. St. , U$,'pro:viding that the l!ossistant secretaries of the treasUry "llhall &x-
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